Amy has a nice summation of the patent hearing we attended, and I must confess I was one of the folks who snuck out before its conclusion. Still, I heard a fair amount. As I have readily admitted in this space, I have much to learn regarding patents, and like so many learning processes, I took so much in today that I feel I know less now than I did this morning. I fear that if I speak too substantively on what Chairman Smith accurately called "arcane" subject matter I will either factually err or otherwise reveal ignorance, so let me comment on something I've spent a little more time with -- politics, or the political realities of Capitol Hill.

Having spent the last seventeen years haunting the Hill in one way or another (staffer, reporter, think tanker), I know a logjam when I see one. I have tremendous respect for Lamar Smith, and one thing I admire is his small ego -- I've never seen a member more willing to modify his own legislation to bring more people on board. This issue may test even his patience, however.

He first circulated a bill this spring, then revised it in July as an amendment in the nature of a substitute. Those changes were hardly sufficient in the eyes of many interested parties, as some of us heard in Aspen. Thus, multiple industry trade groups negotiated a new version of the bill circulated on September 1st and discussed at the hearing. Smith was very good-humored about the new draft, but acknowledged that there didn't seem to be much of his bill left in the so-called "redline" document.

Knowing Smith, he'd still be fine with that if the redline document was a true consensus. But as the hearing showed, it definitely is not. Language on venue seemed acceptable, but there was much division on issues such as apportionment and damage calculations in general. Noting a division on apportionment between Pharma and BIO on one side and BSA on the other, Smith asked BSA's Emery Simon if there was a possibility of a compromise. "There are certain places we cannot go," he replied.

This isn't a case of industries being stubborn or narrow-minded. Everyone in this debate agrees patents are a key engine of the U.S. economy. But the software industry differs from the pharmaceutical industry which differs from the biotech industry, in areas such as time-to-market and other key areas. The software industry may be suffering in one area under existing rules but a pharmaceutical company may not be suffering the same problem.

Ranking Democrat Howard Berman complained that this was just a hearing; he's eager for reform and said he wished they were marking up Smith's bill. He dissed one witness who said July to September hadn't been enough time to reach consensus. I've always admired Berman for his doggedness. But Smith, being in the majority party, has more responsibility here and knows he can't rush this process. We're going to be at this for some time to come, and I think all those folks Amy mentioned who were crammed in the full committee hearing room today know that.

posted by Patrick Ross @ 6:26 PM | Patents

Link to this Entry | Printer-Friendly | Email a Comment | Post a Comment(0)